This is an indictmentfor a forcible trespass, by turning the prosecutor out of his house, against the Sheriff, Ins deputy, and several persons summoned by the Sheriff to his aid, and also against Peden, the plaintiff in the execution under which the Sheriff acted, and Foster, the Justice who issued the execution. Foster was not present at the eviction. Peden, it. is said, was present, “-bat gave no assistance from which we must understand that he did not take possession of the premises,, from which the prosecutor was evicted.
The case of the Sheriff and his deputy and assistants stands on a different ground from that of the Justice and the plaintiff" in this execution, and they must be considered separately.
1. As to the Sheriff. The law is well settled, that if the Court issuing the process had a general jurisdiction tojissue such pro-* cess, and the want of jurisdiction in the particular case did not appear on the process, the Sheriff may justify under it. Phillips v. Biron, 1 Strange, 509. Parsons v. Loyd, 2 Wm. Bla., 846. State v. Weed, 2 Head’s Lead. Cr. Cas., 202 and notes. Welch v. Scott, 5 Ire., 72. State v. McDonald, 3 Dev., 468. State v. Mann, 5 Ire., 45. Hoskins v Young, 2 D. & B., 527.
2. It is equally clear that the assistants, summoned by the. Sheriff, can justify in like manner with him. In Grant v. Blogge, 3 East., 128, it was said on the argument, that Willis, O. J., had doubted of this. But Lord Ellenborough said there was no authority to warrant a doubt.
In this case, the Justice, under the Landlord and Tenant Act, (1868-69, Ch. 156,) had jurisdiction, under proper circumstances, to issue an execution like that pleaded. There was nothing on the face of the process to inform the Sheriff that the Justice, had acted irregularly. The Sheriff was not bound to look beyond his process, and we think he was justified in obeying it.
If the action had been a civil one for the trespass, and the Sheriff had joined in pleas with parties who could not have availed themselves of his peculiar defence, the plea, being bad *222as to them, would have been bad as to him also. But on an indictment, the plea of each defendant is several, and each is entitled to any defence he can set up under it. IrYe concur with the Judge as to these defendants.
3. As to the Magistrate. A civil action may be maintained against a Justice who acts without his jurisdiction. Cave v. Mountain, 39 E. C. L. R., 432 (1 M. & G.), 42 Id. 825 (12 B. 889) Id. 2 Q. B. 600, 47. Id. 100 (1 C. & K. 100.) And also if he acts irregularly and oppressively, as if he issues a warrant for an assault, not super visum, and.not complained of on oath, before him. Welch v. Scott, ubi sup. But he is not liable for a mere mistake or error of judgment. 1 East., 563, note.
To maintain a criminal action, it must be alleged and shown that he acted without his jurisdiction, or corruptly and with a criminal intent, or at least maliciously and without probable cause. State v. Zachary, Busb. 432, Rex v. Barron, 3 B. and Ald. 432, Fentiman, ex parte, 2 A. and E. 127. (29 E. C. L. R.)
There is no such allegation or proof in this case.
4. As to the plaintiff Peden, we have had more doubt, and have found no authority directly bearing on his case. Our reasoning is this: It is true he set in motion the proceeding which terminated in the illegal eviction of the prosecutor, but it is not alleged or proved that he did it maliciously, or with the intent to procure an illegal eviction. For aught that appeal’s, he made a lawful application to the Justice for a relief within his jurisdiction. The subsequent irregularities were the act of the Justice, over which the plaintiff had no control, and for which he is not responsible, He was present at the eviction, but gave no aid. If the proceeding had been regular, as he may have supposed it was, he had a right to be present and receive possession. "W e think he also was not guilty.
Pee Cukiam. Judgment affirmed.